The Human Rights Tribunal of Ontario has ordered Jaytex of Canada Limited to pay compensation to its former Director of Merchandising after concluding that “the applicant’s sex and family status were factors in the respondent’s decision to terminate her employment on December 16, 2019.”
The tribunal found that M.C., a new mother returning from a parental leave, experienced discrimination when she was dismissed more than a month ahead of other staff who were laid off in early 2020.
The applicant, employed as Director of Merchandising since January 5, 2015, began a parental leave on December 5, 2018, planning to return in December 2019. According to the ruling, M.C. “alleges that the respondent failed to accommodate her childcare-related needs to vary her start time, and terminated her employment on December 16, 2019 prior to her return to work, because of her childcare responsibilities and family status as a new mother.” Jaytex denied the discrimination allegations, stating that the decision to terminate her role stemmed from “business constraints which resulted in a mass termination of employees.”
Modified work hours
In a detailed examination of evidence from a three-day videoconference hearing, the adjudicator found that M.C.’s requests for modified working hours were rooted in “childcare needs” rather than mere preference. Notably, the tribunal stated that these needs “engaged the accommodation process,” and that Jaytex appeared willing to adjust schedules. The ruling notes, “I find that the applicant’s request for a modified schedule engaged the accommodation process … the respondent met its procedural duty to accommodate.” The dispute centred on whether the company’s decision to dismiss M.C. in December 2019, rather than wait until the general layoffs in February 2020, was influenced by her sex and family status.
The evidence before the tribunal included testimony from both parties and multiple witnesses. M.C.’s evidence indicated that during a July 2019 meeting about her anticipated return, “(Company president H.K.) told her that Jaytex had restructured her role … and inquired whether she would be willing to move to a role in the LL Bean Division,” a position she agreed to consider. M.C. also testified that at this meeting, management questioned her childcare arrangements and “suggested that she hire a nanny.”
In November 2019, shortly before her return, M.C. requested a later start time, from 9:00 a.m. instead of 8:30 a.m., to accommodate daycare drop-off. In response, H.K. wrote in a text message, “My biggest concern is you having much shorter workdays than everyone else.”
Early termination date influenced by discrimination
Although the tribunal did not find that Jaytex failed in its procedural accommodation efforts, it did conclude that the early termination date — December 16, 2019 — was influenced by discriminatory considerations. The ruling states, “I find that the applicant’s sex and family status … were a factor in the respondent’s decision to terminate her employment on December 16, 2019 much earlier than her colleagues who were laid off in February 2020.”
Key documentary evidence included a December 1, 2019 email in which a company co-owner placed M.C. on a list of employees to be let go, adding, “(M.C.) (who we absolutely cannot bring back).” The adjudicator accepted M.C.’s submission that this comment “was in reference to her being on parental leave and was related to her perceived childcare obligations.”
The environment within Jaytex also came under scrutiny. The ruling notes that a witness, K.J., a former Jaytex employee, described “a toxic work environment” for women returning from parental leave and facing childcare obligations. While Jaytex presented testimony of another former employee, S.S., who had taken parental leaves without difficulty years earlier, the tribunal found that her experience, occurring “prior to 2015,” carried less weight given potential shifts in workplace culture. The adjudicator wrote, “I found that the applicant’s evidence was corroborated by Jankul’s testimony, and I accept … that the workplace environment was not supportive of women with childcare obligations, particularly after a parental leave.”
Duty to accommodate met
On the question of whether the company properly met its substantive duty to accommodate, the adjudicator did not find a failure. The decision acknowledges efforts to address scheduling requests, including offering M.C. “9:00am start times” and “work from home or doing store visits on the occasional weekend,” as well as delaying her return until January to minimize stress.
The tribunal concluded that “the respondent met its procedural duty to accommodate.” Instead, it was the timing and reasoning behind M.C.’s termination — finalized before the general layoffs and shortly after discussions of childcare needs — that the tribunal found discriminatory.
End date disputed
The tribunal did not accept M.C.’s contention that her work would have continued well beyond February 2020. The evidence showed Jaytex “terminated nine employees in or around February 2020 for business reasons” and that, had M.C. returned to work, she likely would have faced a layoff along with these other staff. However, by selecting her for dismissal in December 2019, before her scheduled return date, the tribunal concluded that her parental status played a role. The ruling states, “I find that the applicant’s family status and sex as a female parent with childcare responsibilities was a factor in the respondent’s decision to terminate her employment.”
Damages
The tribunal awarded M.C. a total of $4,846 in lost wages and severance adjustments, as well as $4,460 for a lost daycare deposit. Additionally, M.C. was awarded $15,000 as compensation for “injury to dignity, feelings and self-respect.” The adjudicator acknowledged M.C.’s testimony that she felt “devastated by the termination,” leading to financial and psychological strain at a pivotal time of new motherhood.
While recognizing that M.C. would have been laid off within weeks due to business constraints, the ruling found that the discriminatory element was the employer’s decision to single her out early because of her childcare responsibilities, and to do so without giving her an opportunity to return to work before termination.
In explaining the award amounts, the tribunal drew on previous cases involving discrimination on the basis of family status and the duty to accommodate. The adjudicator concluded that “$15,000 as compensation for injury to dignity, feelings and self-respect is an appropriate award in the circumstances of this case.”
The order directs Jaytex to pay M.C. the specified amounts plus pre-judgment and post-judgment interest. The tribunal’s ruling, while recognizing Jaytex’s business constraints, underscores the importance of ensuring that parental leave returnees are treated equitably and not disadvantaged by workplace assumptions regarding their childcare obligations. As the tribunal noted, “The fact that the applicant is identified as a ‘mat leave employee’ suggests that the respondent … ought to have been more attuned to its obligations under the Code.”
For more information, see Cane v. Jaytex of Canada Limited, 2024 HRTO 1705 (CanLII).
